RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 9] [2017] WASC 367 (15 December 2017)

Last Updated: 21 December 2017

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 9] [2017] WASC 367

CORAM : CHANEY J

HEARD : 1-31 MARCH, 3­11, 19­21, 26­28 APRIL, 8, 9, 12, 16 MAY, & 17­19, 24­28 JULY 2017

DELIVERED : 15 DECEMBER 2017

FILE NO/S : CIV 2177 of 2008

BETWEEN : LLOYD PATRICK RAYNEY

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA

Defendant

Catchwords:

Defamation - Press conference by police - Meaning of words used - Alternative imputations - Imputations of guilt or suspicion of guilt - Qualified privilege - Whether occasion of qualified privilege - Whether conduct of defendant reasonable - Whether imputations true - Conduct rule



Damages - Non-economic loss - Purpose served by non­economic damages for defamation - Proper construction of Defamation Act 2005 (WA), s 35 - Cap on damages - Aggravated damages - Causation - Mitigation - Damages or compensation received in other proceedings



Damages - Economic loss - Causation - Intervening events causing loss - Break in chain of causation

Legislation:

Defamation Act 2005 (WA), s 30, s 35, s 38

Result:

Judgment for the plaintiff

Category: A

Representation:

Counsel:

Plaintiff : Mr M L Bennett & Mr J D MacLaurin

Defendant : Mr T K Tobin QC, Ms R Young & Ms K A T Pedersen

Solicitors:

Plaintiff : Bennett + Co

Defendant : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Table of Contents

CHANEY J:

1 The plaintiff, Mr Lloyd Patrick Rayney, claimed damages for defamation arising from a series of media conferences conducted by Detective Senior Sergeant Jack Lee during the course of an investigation into the murder of the plaintiff's wife, Mrs Corryn Rayney. The plaintiff claimed that the words used by DSS Lee in four media conferences conducted by him, or alternatively the words spoken at the last of the four conferences on 20 September 2007, bore the imputation that the plaintiff had murdered his wife. In the alternative, the plaintiff pleaded that the words meant that the plaintiff had so conducted himself as to give rise to a reasonable suspicion that he had murdered his wife.

2 The defendant, the State of Western Australia, denied that the words used bore either of the meanings pleaded by the plaintiff. It contended, however, that if the words did bear the plaintiff's alternative meaning, they were true. The defendant pleaded that the words used by DSS Lee bore a different meaning being that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for so suspecting, and that that imputation was true. The defendant also contended that if, contrary to its denial, the words did bear either of the meanings pleaded by the plaintiff, then they were uttered on an occasion which attracted the defence of qualified privilege, either under the Defamation Act 2005 (WA) or at common law.

3 For the reasons set out, I have reached the following conclusions:

• That the words used by DSS Lee on 20 September 2007 stand alone as a separate publication, and should be construed on their own.
• That the words used by DSS Lee on 20 September 2007, in their entirety, bore the imputation that the plaintiff murdered his wife. The defendant did not assert that that imputation was true.
• That the defence of qualified privilege, either under the Defamation Act or at common law, is not available to the defendant in the circumstances of the defamatory publication by DSS Lee.
• That it follows that the plaintiff is entitled to be awarded damages for the defamation.

4 I have also concluded that the publication was attended by circumstances of aggravation which make the statutory cap on damages for noneconomic loss inapplicable. In those circumstances, I have determined that the damages for noneconomic loss, which are designed to compensate the plaintiff for the damage to his personal and business reputation, personal hurt and distress caused by the defamation and vindication of the plaintiff's reputation, should be assessed at $600,000.

5 In relation to damages for economic loss, to which the plaintiff is also entitled, I have concluded that the defamatory statements made by DSS Lee caused the plaintiff to suffer economic loss by way of loss of income for the period from the date of the defamation until the date of his arrest and charge with murder on 8 December 2010. I have concluded that thereafter the defamatory statements ceased to be a cause of economic loss and will not be a cause of loss in the future. Rather, the damage to the plaintiff's practice from that date onwards is attributable entirely to other causes. I have resolved the points of difference between the expert witnesses called by each party for the purpose of quantifying the plaintiff's losses, and propose that quantification of the amount of the plaintiff's economic loss be undertaken having regard to the findings made in these reasons following conferral between the parties and their experts.

6 In light of the conclusions I have reached as to the meaning of the words, any question of the truth of the imputations, with which most of the very long trial was concerned, has no bearing on the outcome. I have, however, reviewed all of the evidence and made findings in relation to those matters for the sake of completeness. Had it been necessary to determine those matters, I would have concluded that, in the circumstances known to the Western Australian Police as at 20 September 2007, and in light of the plaintiff's conduct then and subsequently known, it cannot be said that there were reasonable grounds to suspect that the plaintiff murdered his wife or that he had so conducted himself as to give rise to that suspicion. Rather, those matters gave rise to no more than a basis, which clearly did exist, for police to continue, as part of their wider investigation, to investigate whether the plaintiff may have had any involvement in his wife's death.

7 On 7 August 2007, Mrs Corryn Rayney, then a registrar of the Supreme Court of Western Australia, went missing after attending a boot scooting class in Bentley, a suburb of Perth. Nine days later, on 16 August 2007, her body was found buried off a bush track in Kings Park. She had been murdered. From the time of her disappearance, the police carried out extensive investigations in what was referred to as 'Operation Dargan'. DSS Lee was the officer in charge and was designated as the police media liaison officer in relation to the investigation.[1]

8 A number of media conferences were conducted by DSS Lee in relation to the investigation. In particular, conferences were conducted by him, or at least media statements made, on 16 August 2007, 22 August 2007, 29 August 2007 and 20 September 2007.

9 The plaintiff, Lloyd Patrick Rayney, was the husband of the late Mrs Rayney. At the media conference on 20 September 2007, DSS Lee said that the police believed that Mrs Rayney had been killed at her home in Monash Avenue, Como, and that Mr Rayney was a suspect in the matter. When asked whether he was the prime suspect, DSS Lee responded that 'he's our only suspect at this time' and that 'he is the primary person of interest or, or the suspect'.

10 The plaintiff claims that the words spoken by DSS Lee to representatives of the media on 20 September 2007, construed in the context of words previously spoken by DSS Lee to the media on 16 August 2007, 22 August 2007 and 29 August 2007 (oral utterance), or alternatively the words spoken by DSS Lee on 20 September 2007, taken alone (alternative utterance), conveyed the defamatory imputation that the plaintiff murdered or unlawfully killed his wife (guilt imputation), or alternatively that he so conducted himself as to give rise to a reasonable suspicion that he murdered or unlawfully killed his wife (conduct imputation).

11 In December 2010, more than three years after DSS Lee described the plaintiff as the prime and only suspect, the plaintiff was charged by the police with the murder of his wife. After a lengthy trial which took place in 2012 over a period of four months, before Brian Martin AJ[2] sitting alone without a jury, Mr Rayney was acquitted of the charge. The State appeal in relation to that verdict was dismissed in September 2013.

12 Prior to September 2007, Mr Rayney conducted a successful practice as a barrister, having previously held senior positions in the Office of the Australian Government Solicitor (AGS) and the Office of the Director of Public Prosecutions (ODPP) for Western Australia and, for a period, in Bermuda. It is apparent that the events which occurred subsequent to Mrs Rayney's murder resulted in significant damage to Mr Rayney's legal practice. He attributes the oral utterance, or the alternative utterance, as a cause of the damage to his practice and the substantial financial losses which have flowed from it. He seeks to recover those losses, together with general and aggravated damages for destruction of his reputation and hurt caused by the utterances from the defendant, the State of Western Australia, on the basis that it is liable pursuant to s 137(5) of the Police Act 1892 (WA) for the publication by DSS Lee, the publication not having been made with corruption or malice.

13 The defendant denies that the oral utterance, or the alternative utterance, bear the defamatory imputations asserted by the plaintiff; it pleads that if, contrary to its denial, the words conveyed the conduct imputation, then they were substantially true. In the alternative, the defendant pleads that each of the oral utterance and the alternative utterance conveys the imputation that the police suspected the plaintiff of having murdered or unlawfully killed his wife and had reasonable cause for so suspecting (suspicion imputation), and that imputation was true. It does not contend that the guilt imputation was true. The defendant also pleads a defence that the words are protected by statutory qualified privilege under s 30 of the Defamation Act 2005 (WA) or by qualified privilege at common law.

14 Mr and Mrs Rayney met in 1986. At that time, Mr Rayney was working as a solicitor at the AGS and Mrs Rayney was an articled clerk. They commenced a relationship in 1987 and were married in March 1990. In 1992, they purchased their home at 6 Monash Avenue, Como, in which they were still living at the time of her death. Their first child, Caitlyn Grace Rayney was born in March 1994. Their second daughter, Sarah Grace Rayney was born in February 1997. Both children attended Penrhos College, which is located not far from the Rayney residence.

15 Mr Rayney left the employment of the AGS in 1988, and commenced employment with the Commonwealth ODPP where he worked until 1989. He then commenced work at the Crown Solicitor's Office in Perth where he predominantly practiced in the area of criminal law, appearing as counsel in criminal trials and also before various boards and tribunals. He was promoted at the Crown Solicitor's Office to the position of senior prosecutor.

16 From 1992 to 2003, and then again in 2004 to 2005, Mr Rayney was employed at the ODPP in Perth. He prosecuted a number of matters involving serious and complex trials and appeals. From 1998 to 2002, he was second in charge to the Director of Public Prosecutions (DPP).

17 While working for the ODPP in 2002, an opportunity arose for Mr Rayney to apply for the position of senior crown prosecutor at the ODPP in Bermuda. He applied for that position and was successful, commencing work at the ODPP in Bermuda in April 2003.

18 Mr Rayney said that, before applying for the position, he discussed with his wife whether he should apply and they agreed that he should. By that time, Mrs Rayney had commenced employment at the Supreme Court of Western Australia as an acting registrar. Mr Rayney said that the plan was that she would take leave without pay and join Mr Rayney with their daughters in Bermuda. To that end, he said that Mrs Rayney and his daughters visited him in Bermuda and holidayed with him on four occasions. On the first occasion in 2003, Mr Rayney said that they looked at schools for the children and completed applications for them to attend a private girls' school, paying the admission and enrolment fees. Mrs Rayney sat for, and obtained, her Bermudan driver's licence. Mr Rayney's contract with the ODPP in Bermuda was for three years, but he left after about 16 months. He said that the reason for his early return was that Mrs Rayney was unable to obtain leave without pay from the Supreme Court because she was not permanently employed and because he was missing his family 'terribly'.

19 It is apparent that before Mr Rayney travelled to Bermuda there had been tensions in his relationship with Mrs Rayney as a result of Mr Rayney's gambling habits. Those, and other, tensions were the subject of a number of emails passing between Mr and Mrs Rayney in late 2003. It is apparent from those emails that there were stressors in the marriage. One of those emails generally supports Mr Rayney's account of the plans associated with his move to Bermuda and the reason that those plans did not come to fruition. In particular, on 8 October 2003, Mrs Rayney emailed Mr Rayney making clear that her 'work is clearly the determining factor', and was the cause of her reluctance to move to Bermuda.[3]

20 Mr Rayney returned to work at the ODPP in Perth in August 2004. Mrs Rayney continued to work as a registrar and subsequently her position at the Supreme Court was made permanent.

21 Mr Rayney moved to practice as a barrister at the independent bar in June 2005. That move was made after considerable discussion between Mr and Mrs Rayney; Mr Rayney suggesting that his wife was concerned at the risk of a reduction in his income if he was to move to the bar. Mrs Rayney's attitude on that matter changed when Mr Rayney told her that Ms Gina Rinehart, a prominent businesswoman, wanted Mr Rayney to do legal work for her in relation to three litigation matters in which Ms Rinehart, or her company Hancock Prospecting Pty Ltd, was involved. Mr Rayney's practice at the independent bar was successful and profitable up until September 2007.

22 It is apparent that in the early months of 2007, significant tensions arose in Mr and Mrs Rayney's relationship. That is a topic dealt with in more detail later in these reasons. In light of that deteriorating relationship, both Mr and Mrs Rayney consulted family law practitioners. In the context of that deteriorating relationship, Mr Rayney took steps to record certain of Mrs Rayney's conversations. The first time Mr Rayney attempted to record his own conversations with his wife was around April 2007 when he used a portable dictaphone to do so. Those substantially unsuccessful attempts were abandoned not long after they commenced. Later in late July or early August 2007, Mr Rayney engaged the services of a Mr Timothy Pearson to install a recording device on Mr and Mrs Rayney's home phone line. Those are topics dealt with in more detail later in these reasons.

23 As previously noted, Mrs Rayney went missing on the evening of 7 August 2007 after leaving a boot scooting class in Bentley. At that time, Mr Rayney was in the course of representing Superintendent Brandham in proceedings before the Corruption and Crime Commission (CCC) relating to the conduct of the police enquiry in relation to Mr Andrew Mallard. Mr Mallard's conviction for murder had been overturned by the High Court,[4] which had ordered a retrial that was ultimately not pursued by the DPP. The enquiry by the CCC examined the conduct of the police and a State prosecutor in relation to the investigation and trial of Mr Mallard at first instance. During a morning break at the CCC hearing, Mr Rayney received a phone call from his secretary who advised him that she had received a phone call from the Supreme Court advising that Mrs Rayney had not arrived at work that day. Mr Rayney then called the number he had been given, and called Mrs Rayney's family members to enquire whether they knew of her whereabouts. Following the phone calls, Mr Rayney explained what was happening to Superintendent John Brandham, and told him that he wished to go to Mrs Rayney's office. Superintendent Brandham agreed, offering his assistance if required. After arranging for his apologies to be conveyed to the Commissioner, Mr Rayney went to the Supreme Court where he spoke to staff. He said that he told them that he did not see Mrs Rayney come home the previous evening, and presumed that she had gone to work before he got up. Mr Rayney's sister, Ms Raelene Johnston, joined him at the court and they made a number of phone calls to hospitals in case Mrs Rayney had been involved in an accident. They also made phone calls to her family and friends, but no one was able to identify where she was.

24 Mr Rayney said that he was offered the opportunity by one of the court staff to read her work diary, but he declined to do so on the basis that he expected that, by virtue of her position, there would be confidential material which he ought not view.

25 Mr Rayney said that at some point, he asked Mrs Rayney's staff if they had looked at her emails to see if that would assist in locating her. He was told that they had not looked at the emails because of a password lock, but that the password could be unlocked if permission were obtained from the Chief Justice. Mr Rayney offered to see the Chief Justice for that purpose, which he did. By this time Superintendent Brandham had come to the court to offer assistance. The Chief Justice gave permission for the court's information technology staff to unlock Mrs Rayney's computer so that police could have access to her emails. Mr Rayney said that he told Superintendent Brandham, who was to look at the emails, that the emails would be embarrassing to Mr Rayney because of the numerous accusations which his wife had made against him in email communications from her place of work.

26 Operation Dargan was the responsibility of the Major Crime Squad (MCS) of the WA Police. Superintendent Jeff Byleveld was the officer in charge of the Major Crime Division. The officer in charge of the MCS was DSS Lee. The senior investigating officer (SIO) of Operation Dargan was DS Carlos Correia. He filled that role from 10 August 2007 until Mr Rayney's criminal trial commenced in July 2012.

27 The MCS consisted, in August 2007, of three investigation teams, and in addition included the Missing Persons Unit which, at the time, was headed up by DS Robinson.

28 DS Correia said that the structure of the team developed over time and subsequent to 10 August 2007, but in the early weeks of the investigation, the operation team developed as follows:

• DS Robinson was initially media liaison officer and later he became the office manager whose task was to assist DS Correia and oversee quality control of statements, actions and running sheets;
• DS Moore was appointed as forensic liaison officer;
• DS McKenzie was the family liaison officer for Operation Dargan and was assisted by DC Tan who was attached to the Kensington Detectives Office;
• DI Prins was the operations manager for all jobs at the MCS, including Operation Dargan. In that capacity he was responsible for allocating resources, strategic planning and consulting with the police hierarchy as necessary for resourcing issues. He was the relieving officer for DSS Lee and could provide advice on 'going forward in the operations';
• DSC Casilli was the pathology liaison officer and special projects officer. Special projects involved liaising with and making requests of the covert team. He was chosen for that role as he was experienced in special projects; and
• DSC Williams assisted as forensic liaison officer with the forensic team to examine Mrs Rayney's vehicle after it was located.

29 During the course of Operation Dargan, the number of officers assigned to the operation changed and at one point the team had about 30 officers, including unsworn police officers, although not all worked fulltime on Operation Dargan.

30 DSS Lee explained his role in Operation Dargan as being kept informed of progress by DS Correia, DS Robinson, DS McKenzie and others as to the progress of the investigation, discussing strategy and providing advice and direction. He said that he needed to be wellinformed about investigations being run by the MCS so that he could ensure adequate resourcing and professional handling of the investigation in accordance with guidelines and to enable him to provide briefings to executive management such as the Assistant Commissioner of Crime and others within the Western Australian Police as required.

31 DSS Lee explained that in MCS, briefings for the investigation team typically took place each morning and afternoon. At those briefings, investigators were provided with updates regarding their particular lines of enquiry. Briefings would include updates obtained by investigators from other persons such as forensic scientists, pathologists, chemists, botanists and senior DPP prosecutors, and would examine investigative materials that had been obtained.

32 It is clear that the various officers referred to above who were involved in the investigation of Operation Dargan generally attended those briefing sessions and shared information they had obtained as a result of their investigations.

33 Each of the officers involved maintained records of their investigations. Those records comprised notebooks, referred to as 'red books'; an official police diary which usually contained little more than a general reference to a day's activities; and running sheets which were subsequently loaded onto the database known as 'VIPER'. The contemporaneous notes from a red book would be used to formulate running sheet entries or uploaded to VIPER directly. Running sheets provided a record of tasks and enquiries relevant to an investigation and were entered onto the VIPER system and linked to particular actions.[5]

34 VIPER is the case management system utilised by the WA Police, including the MCS, for all major investigations. Every investigative task receives an individual VIPER 'action number'. Access to individual investigations within VIPER is restricted to officers who have involvement with the particular investigation and who are generally approved by the investigation's SIO. All matters relating to an investigative task were recorded on VIPER against the particular action number as either 'items' or 'attachments', which could then be accessed through the individual VIPER action. It was also possible to link electronic records and other documentation to individual VIPER action numbers.[6]

35 According to Mr Rayney (and I accept), between the period from 8 August 2007 until Mrs Rayney's body was found, police attended the Rayney residence every day, and were made welcome by him. Usually it was DC Tan and DS McKenzie who attended.

36 Statements were obtained by police on 7 August 2007 from Mr Rayney, his daughter Caitlyn, Ms Sharon Coutinho and various friends of the Rayneys, including Ms Cheryl Gay, Mr Glen Dale, Ms Shana Russell, Mr John Tinker, Ms Janine Gillett and Ms Julie Porter. On 9 August 2007 a statement was obtained from Sarah Rayney, Mr Da Silva (Mrs Rayney's father), a friend of Mrs Rayney's, Mr Ervin Vukelic, and Ms Narelle Morris, a Supreme Court employee.

37 Over the following days, a number of statements were obtained from other persons.

38 Mrs Rayney's car was located in Kershaw Street, Subiaco, on 14 August 2007, and her body was located the following day buried off a bush track in Kings Park. A DNA test confirmed that the body was that of Mrs Rayney. A preliminary postmortem examination was carried out later that day and a full postmortem autopsy was conducted on 17 August 2007.

39 On 22 August 2007, police executed a search warrant at the Rayney residence and DSS Lee addressed a media conference outside that property. Mr Rayney claimed legal and professional privilege in relation to certain documents seized during that search and on 24 August 2007 an application was made to the Perth Magistrates Court to determine that claim.

40 On 27 August 2007, the police obtained a warrant to intercept Mr Rayney's home phone and his mobile phone.

41 On 29 August 2007, as a result of information which had been obtained during the course of the police investigation, the police executed a search warrant on the home of Mr Pearson in relation to matters which are dealt with in more detail later in these reasons.

42 Mrs Rayney's funeral was held on 1 September 2007.

43 On 20 September 2007, a second search warrant for the Rayney residence was executed by police. The circumstances of the execution of that warrant are also dealt with in more detail later in these reasons. On that day, Mr Rayney accompanied DS Gregor Hart and DS Craig Carter to Curtin House where he was interviewed, but exercised his right to silence. He was subsequently charged with one count pursuant to s 5(1)(a) of the Surveillance Devices Act 1998 (WA) and released on bail from Curtin House. It was later that afternoon that DSS Lee held the press conference in respect of which these proceedings are focused.

44 A further claim for legal professional privilege in relation to documents seized during the second search was made by Mr Rayney on 24 September 2007.

45 On 22 October 2007, police substituted the original charge under s 5(1)(a) of the Surveillance Devices Act with a charge under s 7(1)(a) of the Telecommunications (Interception and Access) Act 1979 (Cth).

46 There is no issue in these proceedings as to the words spoken by DSS Lee at any of the four media conferences. The words spoken by DSS Lee on 16, 22 and 29 August 2007 are set out in annexure A to these reasons. The words spoken on 20 September 2007 were as follows:

INSPECTOR HATCH: All right guys, thanks for comin'. Umm, it's standing room only today obviously. Ah, Detective Senior Sergeant Jack Lee as you all know already. Ah, Jack will be giving obviously an update on Operation Dargan. He'll be, umm, briefly reading a pre-prepared statement to start off with and then we will take questions. I'll just relieve you that Jack does have another briefing to go to at 3:30, so it's not going to be excessively long. So, I'll hand over to Jack.



LEE: Thanks mate. Yeah, thanks ladies and gentlemen for coming in this afternoon. Ah, today, operation Dargan detectives executed Criminal Investigation Act search warrants at a further two premises, ah, the Rayney home in Monash Avenue in Como and Mr Rayney's business premises at the Francis Burt Chambers in the City. Our ongoing investigations and forensic evidence have led us to believe it is very likely that Mrs Rayney was murdered at her Monash Street home, on Tuesday evening the 7th of August. The purpose of our examination today is to expand our forensic examination of, of this scene. Police executed force, forced entry, ah, to the...I'll start that again sorry. Police executed a forced entry to the home after access was denied this morning. A minor damage was caused to the rear door. As a result of further investigations this morning, including the interview of Mr Rayney, he is now a suspect in the murder of his wife. He has been arrested and will be charged with an unrelated matter today. And I'll take your questions.



PRESS: What makes you believe...



PRESS: What has he been charged with?



LEE: He has been charged with an offence under the Surveillance Devices Act, ah, section 5. That relates to, umm, the installation of a telephone tap on a, umm, on Corryn Rayney's phone.



PRESS: The work phone or home phone? Or?



LEE: It was the home phone.



PRESS: Jack what, what, makes you believe that Corryn Rayney was murdered at the home?



LEE: Ah, as I said our, our forensic evidence, which we - we've been working behind the scenes for a long time as we've indicated. Umm, we've interviewed a lot of people. We've got a lot of forensic evidence and that evidence is starting to come back. Ah, we now believe that, umm, that, that is the most likely place where this offence occurred.



PRESS: Where abouts inside the home?



PRESS: Can you tell us where abouts in the house was that it is likely to have occurred?



LEE: No, I don't wish to disclose the, the, exact area that we, we, think that has occurred at.



PRESS: Are you able to say if it was inside the actual building or to the outside of the building?



LEE: No, I, I don't want to go down that path, it's giving away information that at this stage we would like to keep, umm, confidential.



PRESS: Do you have a murder weapon?



LEE: I don't, I don't intend to discuss the murder weapon or whether there was a weapon or the cause of death or anything of that nature.



PRESS: Are you going to charge him with murder today?



LEE: The invest - the interview with Mr Rayney is on-going at this very moment. Umm, subject to the result of that interview, ah, we'll know whether Mr Rayney's been charged in relation to that particular offence. He will be charged in relation to the Surveillance Devices Act offence and that offence will, he will, for that offence he will be released on bail.



PRESS: Was the surveillance device government property?



LEE: Sorry?



PRESS: Do you believe that one of the children was at the house when the...



LEE: Oh look as far as pinning it down to an actual time frame, that's, that's very difficult. We know that the children were at the house over night, umm, so I suppose the answer to that is yes, but I can't speculate on that.



PRESS: Have you interviewed the children?



PRESS: How long was the phone tapping...?



LEE: Pardon?



PRESS: You've interviewed the children?



LEE: No, we would like to interview the children. We've, ah, spoken to them early in the investigation. We would like to interview them again.



PRESS: What's stopping you?



LEE: Sorry?



PRESS: Obviously that's very important in terms of Mr Rayney's alibi and things...



LEE: Oh look extremely important. Yes, yes we would like to speak to the children again.



PRESS: What is stopping you?



PRESS: Are they at home today Jack?



LEE: Ah, my belief is that they went to school before we arrived at the house.



PRESS: What is stopping you from interviewing the children?



LEE: Ah, Mr Rayney is.



PRESS: So he has refused to let you talk to them?



LEE: Umm



PRESS: Do you need his consent?



LEE: Yes we do need the consent of the parent to interview children. Yes we do.



PRESS: What about when that parent has been elevated to a suspect in a murder inquiry, do you still need their consent?



LEE: What?



Press: When they have been, once they have been elevated to a suspect as opposed to a POI in a murder do you still need...



LEE: Oh look I, I think we are speculating as to, to what...



PRESS: No its pretty, like you were saying, if the parent needs to give consent, if they are a suspect in a murder inquiry, do you still need consent?



PRESS: Is there a way you can get around that?



LEE: Oh it's, it's simply as a suspect. Yeah we still need the consent of a parent to interview a child, absolutely. We, we are constricted by rules.



PRESS: Is Mr Rayney your prime suspect now Jack?



LEE: He's our only suspect at this time. We do have a number of persons of interest. Umm, some persons of interest have been excluded from this investigation, umm, some remain and I have no doubt that some will be injected into the investigation in the future. At this time, he is the primary person of interest or, or the suspect.



PRESS: Do you think he worked with other people to do this, because you said they might come into the investigation at some time?



LEE: Oh, I wouldn't like to speculate on whether this offence occurred, umm, was the result of one or more persons.



PRESS: Why were the lawyers at the house today?



LEE: Ah, ask the lawyers.



PRESS: Were they asked by you? Did you invite them to attend?



LEE: Ah, we didn't invite any lawyers to attend the house, no.



PRESS: Has Mr Rayney...



PRESS: Extrapolate on the actual entry to the house this morning. Did he sort of yell out from inside, 'No you can't come in', or did you just have no answer?



LEE: Oh look I wasn't there when the warrant was, umm, executed.



PRESS: What have you heard happened at the time?



LEE: My understanding was we demanded entry, umm, we tried to contact the house, we were aware Mr Rayney was inside the house and he didn't answer the door. Umm after knocking several times, we forced entry.



PRESS: Do you think one...



PRESS: Was that, was that lack of, lack of, umm, cooperation if you like at the time, was that explained by the fact he was in the shower or anything like that later on the track?



LEE: No, no it's not explainable.



PRESS: Do you think one or more people buried her, buried her, in Kings Park?



LEE: Do I think there was one or.



Press: Or more people?



LEE: Oh look I, I wouldn't like to speculate on that. If we knew the answers to those sorts of questions, we probably would be having a totally different conference now.



PRESS: Has Mr Rayney been cooperating?



PRESS: Are you aware of the children, sorry...



PRESS: Has Mr Rayney been cooperating with you today?



LEE: Ah, no.



PRESS: Has he refused to answer questions?



LEE: Umm, the, the interview of Mr Rayney is on-going at this time. Umm, I am not currently aware of the status of that so that may have changed but he has not cooperated with police today. That was why he was arrested at the scene and that was why we forced entry into the house.



Press: ...have they found



LEE: Sorry?



PRESS: Have they found the digging implement?



LEE: Oh look we, we found a number of digging implements. We don't know yet whether we've got the correct one. Umm, we have so many forensic, umm, samples in relation to this investigation and we are investigating many other offences of course. Ah, we simply don't know if we've got the right one at this stage.



PRESS: Have you forensically linked him to the disposal scene?



LEE: Oh, I don't wish to discuss particular, umm, I don't wish to discuss particular items of evidence or particular forensic results. That, that wouldn't be appropriate.



PRESS: Yeah hold on. But you have told us that you've got forensic evidence that suggests that she was in fact murdered at the house, so we've got that detail. Have you got any forensic evidence...



LEE: Yeah, look and that's a broad brush. We, we do believe that, ah, that's the most likely place where she was killed. Umm, we can't say definitively but we believe that's the most likely. Umm, there, there are, ah, many forensic results which have to come back which give us that, that indication. Umm, we can not exclude at this time that it happened elsewhere. But we believe it, it is most likely that it, it occurred at that house.



PRESS: ...that charge, is that a state or a federal offence that surveillance thing? It's an offence to tap your phone?



LEE: It's the Surveillance Devices Act. It's a West Australian statute. Umm, we've charged him under section 5(1) I believe.



PRESS: You can't tap your own phone?



LEE: You can't tap a phone if you are recording someone else's conversation and they're not party to that.



PRESS: How long do you believe that was in place for?



LEE: Ah look - that's not appropriate for me to discuss, the, the actual, ah, particulars of an offence that's goin' before court. That is sub judice.



PRESS: Jack do you ...



PRESS: What is your allegation though? What's the allegation why he might have done that?



LEE: Oh, look that's why we're interviewing Mr Rayney today. You know, I've, we have evidence, that he was the one that, that coordinated the, the, installation of the device. Umm, as to the reasons why, umm, that's, that's why we're interviewing him.



PRESS: Are there other parties that you need to talk to about the actual installation? Is there a private investigator or someone else who's perhaps been called in to install this?



LEE: Ah, there, there are other people who will be charged in relation to that offence, yes.



PRESS: Who are those people?



LEE: Oh, I don't wish to discuss that at this stage.



PRESS: Is one of them a private investigator?



LEE: Umm, oh, I don't know what their, oh I am not aware if they are.



PRESS: Is that how you found out about it, through the other parties?



LEE: I don't want to, I don't want to go there.



PRESS: Jack, do you believe the two girls were in the house when their mother was murdered?



LEE: I suppose that, that's, that's the problem with speculation. Once you, you go on from yes we believe that it is most likely she was murdered at that house, we believe it was most likely occurred on that night and from the, the information that we have, we believe the girls were at home for most of that night. So, I suppose the answer is yes but it's as a series of, oh, it's a conclusion. Umm, we don't have evidence to say they, they saw something, if that's where you're goin'.



PRESS: Potentially though, they could be your key witnesses?



LEE: Absolutely.



PRESS: Can you now say how she was murdered?



LEE: Ah, no I'm not prepared to discuss that.



PRESS: Can you say where the blood was found in the car?



LEE: Ah, no I'd, I'd rather not, because it leads on to other areas that I, I don't wish to discuss.



PRESS: Have the girls spoken about the night's events with anybody else, a family member perhaps?



LEE: I don't know.



PRESS: Have you spoken to neighbours? Did they hear an argument or anything at the house?



LEE: All the neighbours have been interviewed. I, I can't go into specifics of what people have told police and what they've said in their statements but we have interviewed all of the neighbours in the street, yes.



POLICE OFFICER: Look, we'll go to the last question now.



PRESS: Apart from the phone taps is there any evidence that links Lloyd Rayney to the murder?



LEE: Ah, look, I am not suggesting that the phone tap links him to the murder. I'm simply saying that as a result of our investigations we've uncovered an illegal, umm, practice and we, we are prosecuting in relation to that.



PRESS: So why is Lloyd Rayney your prime suspect?



LEE: He is our prime suspect because our, our evidence at this time leads us to believe the offence occurred at that house and he is the, the occupant of that house.



PRESS: Jack, where are the girls now and who's looking after them?



LEE: Ah, the girls were removed from school today by a family member and I don't currently know where they are.



PRESS: Jack can you just clarify again for us, you said earlier that there is a possibility, you're not sure at this stage, but there could be a charge of murder sometime later today.



LEE: No sorry I don't want anyone to be misled in relation to that. We are interviewing Mr Rayney in relation to the murder of his wife. Umm, pending the outcome of that interview, umm, that would be the only time, if Mr Rayney was to make some level of admission, that would be the only time, today, we would prefer that charge. At this time we have no intention and no evidence to suggest that Mr Rayney is in fact guilty of or is in fact, umm, responsible for this offence.



PRESS: So you're closer but you're not close enough yet.



LEE: We, look, we, we've have worked very hard behind the scenes in relation to this and there's been a lot of work has gone on by a very dedicated team. We've excluded a lot of people, we've included some people, ah, we've substantially raised the level of one particular person in relation to this. We now think we know where the offence occurred. Umm, yeah, I'd say we are substantially further than we were. Umm, there's still a long way to go and, umm, we, as I've said many times I think we have the evidence. It's a matter of actually working out where it all fits together.



PRESS: Is it usual for you to come out now today, publically, and name Lloyd Rayney as your prime suspect without having enough evidence to charge him with anything.



LEE: Ah, no look, that, that was simply a matter of had we been able to arrest Mr Rayney at his house and take him away, then we would never have named him, had the media not been present. Umm, you know, once it's out there then, then obviously there's, umm, there's a fair degree of speculation as to what he is being charged with or what he's been taken away in relation to, and it only fair, not only on him, but on the community.



PRESS: What have you seized from Francis Burt Chambers today?



LEE: Ah, I honestly don't know. Umm, that, that search I believe is still underway. Umm, so, so I don't know.



PRESS: Was there any family members at the Como house today?



LEE: Yes there was. Umm, but again, I don't have all the details. I, I believe Mr Rayney's mother was there, initially.



POLICE OFFICER: Ok, thanks guys.



PRESS: Thanks Jack.



PRESS: Do you know what the penalty is for the for the, the surveillance devices?



LEE: Ah, yes a $5000 fine or 12 months' imprisonment.



POLICE OFFICER: Okay, if you want cut-aways guys, you gotta get them now.



PRESS: $5000 fine and sorry I didn't hear the last bit?



LEE: Or 12 months.



PRESS: Or 12 months imprisonment.



PRESS: What's the actual charge called?



LEE: Ah, yeah, good one, I've never heard it before. Oh sorry, umm, look it's, it's an offence under section 5 of the Surveillance Devices Act, it's, umm, which regulates the use, installation and maintenance of listening devices. Okay, what the actual short name of the charge is I, I don't know.



PRESS: When do expect him to appear in court on it?



LEE: Umm, he'll be bailed to a day next, next week, I should imagine.



PRESS: Jack, what was the purpose of installing those?



LEE: Ah, you have to ask Mr Rayney. That's the, that's why we're interviewing him.



PRESS: Do police have any idea at this stage?



LEE: No, I'd have, I'd have to speculate. Yes.



PRESS: Did you say he will be bailed until a day next week?



LEE: Yes.



PRESS: He will definitely get bail will he? Do you know what it's going to be?



LEE: Oh look, he'll, he'll be out on his own person recognisance. Umm, you know, he's not run away in the last five weeks. Why would we expect him to run away now because he's been charged with a minor offence?



PRESS: Will you be lodging him at the lock up or will you be letting him out of the front door of Curtin House?



LEE: I, I don't know, I don't know. We've got, we have teams that are working in relation to each of the specific areas of, of this investigation and one team is, is, umm, conducting the interview of Mr Rayney. When they've completed that interview, and subject to, umm, any admissions or confessions he may make, they'll determine what if any offences he's going to be charged with. He will be charged with that particular offence, and then they'll determine his bail and he, he will be released on bail. And whether that's done from Curtin House or whether it's done from East Perth I, I don't know.



PRESS: Thanks Jack.



POLICE OFFICER: Thanks ladies and gentlemen. Thanks guys. Good on ya.



PRESS: Under the Act, how long can you keep him there without charging him with that other offence?



LEE: Umm, it's multiples of 6 hours.



PRESS: Thank you.

47 As noted at the outset of these reasons, the parties between them put forward three different imputations which they say the words were capable of carrying. The plaintiff puts forward two alternative meanings. His primary position is that the words conveyed the guilt imputation. Alternatively, he contends that the words conveyed the conduct imputation.

48 The defendant denies that the words used by DSS Lee were capable of bearing either of the meanings contended for by the plaintiff, but pleads, and then seeks to justify, the suspicion imputation. The defendant also pleads that if, contrary to its denial, the words bore the conduct imputation, then that imputation is true.

49 In the absence of a jury, it falls to the judge to determine the ordinary and natural meaning of the words. At common law, there can be only one innuendo meaning.[7]

50 The meaning of the words is to be ascertained by the sense in which fairminded ordinary reasonable members of the general community would understand the published words. In Lewis v Daily Telegraph Ltd,[8] Lord Reid said:

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

51 Referring to Morgan v Odhams Press Ltd,[9] McHugh J in John Fairfax Publications Pty Ltd v Rivkin[10] said:

A reader may be acting reasonably even though he or she engages in 'a certain amount of loose thinking'.

52 This is because, as Lord Reid also pointed out:

The ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.

53 In John Fairfax Publications Pty Ltd v Rivkin, McHugh J speaking in relation to written publications said:[11]

However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. (footnotes omitted)

54 The mode and manner of publication is material to consideration of the meaning of the words. As Tobias JA (with whom Sheller JA and Young CJ agreed) said in Griffith v John Fairfax Publications Pty Ltd:[12]

The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.

55 That observation is apposite to the context of statements made at press conferences where there is an expectation of republication in the form of short 'grabs' that reduce the likelihood of analytical care in construing the whole of the words used.

56 The meaning of the words is not determined by evidence from the plaintiff as to what he understood the words to mean, nor of the defendant as to what the defendant intended the words to mean. The meaning is to be determined by an assessment of the ordinary reasonable person's understanding of the words.

57 The ordinary reasonable person does not interpret the publication in a precise manner, but rather forms a general impression of the meaning from the words used.[13]

58 In Favell v Queensland Newspapers Pty Ltd[14] in their joint judgment, Gleeson CJ, McHugh, Gummow and Heydon JJ said:

Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said:

'It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.'

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. (footnotes omitted) (original emphasis)

59 Although a lengthy passage, it is helpful to have regard to Kirby J's outline of the principles to be applied to the determination of whether a publication is defamatory in Chakravarti v Advertiser Newspapers Ltd[15] where he said:

1. The matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning. The recipient has been variously described as a 'reasonable reader', a 'rightthinking [member] of society', or an 'ordinary man, not avid for scandal'. Sometimes qualities of understanding have been attributed, such as the 'reader of average intelligence'. The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society. In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decisionmaker. The point of the invocation of the hypothetical reasonable person is to remind decisionmakers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.
2. In the nature of a defamation action, the matter complained of will be analysed most closely during the trial. It will be studied and taken apart by lawyers, line by line, in a way that the average reader or viewer would never do. This fact presents significant dangers, especially for publishers. It is therefore necessary to remember that relatively few readers will be lawyers reading the matter in question with the attention appropriate to a large, complex and expensive defamation case. The ordinary person is a layman, not a lawyer. He or she approaches perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read between the lines than a lawyer might do, used to precision. Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject. That is the price which publishers must pay for the use of loose language.
3. Different views have been expressed concerning the care and attention that will be attributed to the ordinary person and the way in which that person considers the matter complained of. Long ago, it was suggested that the ordinary person, being reasonable, would read the entirety of the matter complained of. Such a person would refrain from drawing inferences adverse to the reputation of another simply because part of the publication included matters discreditable to the subject. This reasoning has lately been endorsed by the House of Lords in Charleston v News Group Newspapers Ltd. In that case, photographs of the faces of the plaintiffs, wellknown television actors, were superimposed upon nearnaked bodies of models engaged in pornographic poses. The headline read 'Porn shocker for Neighbours stars'. When the text of the publication was closely examined it contained expressions of purported outrage about a pornographic computer game which could superimpose the faces of individuals without their knowledge or consent upon the bodies of others. Their Lordships upheld the decisions of the primary judge and of the English Court of Appeal, sustaining the publisher's objection that the publications were incapable of being defamatory. They rejected the proposition that 'the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines'. They declared that such reasoning was 'unacceptable'. Respectfully, I cannot agree with their Lordships' opinion. In my view it ignores the realities of the way in which ordinary people receive, and are intended to receive, communications of this kind. It ignores changes in media technology and presentation. It removes remedies from people whose reputation may be greatly damaged by casual or superficial perception of such publications. And it overlooks the purpose of defamation law which is to provide redress when reputations are damaged in fact, not to reserve remedies to those cases only where detailed and thorough analysis of the matter complained of has been undertaken. I agree with the criticisms which have been voiced about Charleston. Many people, including not a few judges and jurors, do not look beyond headlines and photographs. If this is the environment in which reputations may be harmed, it would be contrary to the purposes of the law of defamation to withhold redress from cases where harm was held to be done. To the extent that dicta in Charleston or other cases suggest that the courts should attribute to the recipients of matter published in the mass media a close and careful attention to the entirety of the item published, I would not follow that opinion. I would not adopt its reasoning as part of the common law of Australia. To do so would be to defy common experience and, if I may say so, commonsense.
4. The ordinary reader will draw conclusions from general impressions. He or she will not reread or review the matter complained of ...
5. Nevertheless, in considering whether, as claimed, the matter complained of actually harms the reputation of the plaintiff, it is appropriate for the decisionmaker to keep in mind the importance attached to freedom of communication. This too is a fundamental human right. Reconciling the attainment of freedom of communication in circumstances where the individual's reputation is also protected is a function of the law of defamation. Allegedly defamatory matter must be read in a way appropriate to a society such as Australia which, by its Constitution and otherwise, enjoys a high measure of freedom of expression. Although reporting that a person has been arrested and charged undoubtedly occasions damage to some degree to the reputation of that person, this must be tolerated on the basis of the legitimate public interest in the reporting of such facts. Only if the publisher goes on to 'say or suggest that the charge was well founded' will such a report carry an imputation of guilt and sustain a remedy in defamation. In a relatively open society, it could not be disputed that the ordinary person would have had an interest to receive fair and accurate reports of proceedings of an important Royal Commission. A mass circulation daily newspaper would have been failing to fulfil its function if it had not reported on the proceedings of such a Royal Commission. Nevertheless, the potential damage to the reputation of those affected made it essential that its reports be fair and accurate. Otherwise, suspicion or accusation might be elevated in the public's mind to guilt in fact. That could leave a stain on the reputations of those affected which would do them serious and unjustifiable harm. (footnotes omitted)

60 Considerable emphasis was placed by the defendant on the passage from the judgment of Mason J (with whom Gibbs CJ, Wilson and Brennan JJ agreed on the point) in Mirror Newspapers Ltd v Harrison[16] where he said:

As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.



In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.

61 It should be noted that Mason J's observations were concerned with 'a report that does no more than state a person has been arrested and has been charged'. In referring to that passage from Harrison, McHugh J in John Fairfax Publications Pty Ltd v Rivkin described Mason J's conclusion as being that 'an ordinary reader would not draw that imputation of guilt from a bare report that a person has been arrested and charged with a criminal offence' (emphasis added). McHugh J went on to say that 'an ordinary reasonable reader does not infer that a person is involved in a crime as serious as murder unless the terms of the article point irresistibly to that conclusion'.[17]

62 A number of cases dealing with statements concerning the existence of a police investigation, or the charging of a person for an offence by the police, have considered the possible imputations of the statement as potentially falling within three categories.

63 That approach was discussed by the Full Court of the Supreme Court of South Australia in Sands v State of South Australia[18] where the court said:

On the other hand, as a matter of human experience and convention, a statement about a person's guilt or a speaker's perception of a person's guilt is often understood as falling into one of a discrete number of common categories. Three such categories are that there are grounds for inquiry whether a person is guilty, that there are reasonable grounds to suspect a person is guilty and that a person is guilty. Thus, in Lewis v Daily Telegraph Ltd Lord Devlin said:

'In the present case, for example, there could have been three different categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt.'

In Flood v Times Newspapers Ltd, Lord Phillips said:

'In Chase v News Group Newspapers Ltd Brooke LJ identified three possible defamatory meanings that might be derived from a publication alleging police investigations into the conduct of a claimant. These have been adopted as useful shorthand in subsequent cases. The Chase level 1 meaning is that the claimant was guilty. The Chase level 2 meaning is that there were reasonable grounds to suspect that the claimant was guilty. The Chase level 3 meaning is that there were grounds for investigating whether the claimant was guilty.' (original emphasis) (footnotes omitted)

64 In pointing out that those commonly encountered meanings are not exhaustive, the Full Court said:[19]

That these three commonly encountered meanings are not exhaustive has been made clear by this Court in Channel Seven Adelaide Pty Ltd & Anor v S, DJ, in which Debelle J (with whom Anderson J agreed) said:

'The noun "suspect" is not a word of precise meaning. It is capable of conveying a number of meanings according to context. ... The variety of the meanings of "suspect" is emphasised when regard is had to the meaning of the verb "to suspect". It may include imagining something wrong or evil or undesirable in a person on slight or on no evidence, or believing something wrong or evil or undesirable in a person on insufficient proof or evidence. It also includes believing that a person has committed an act, lawful or unlawful, where the grounds for that belief may range from mere gossip through a belief on slight or insufficient proof or evidence to a belief reasonably grounded on evidence, even to a belief on strong grounds. Generally speaking, dictionaries define a suspect in the context of a person suspected of a crime as a person imagined to be guilty on insufficient or no proof: see Oxford English Dictionary and Macquarie Dictionary. With respect that is too narrow a meaning. The frequency of press reports of criminal investigation and of court proceedings have made the ordinary man and woman familiar with the fact that the grounds on which a person may be suspected of a crime may range from slight to reasonable, if not also to strong grounds, depending upon the state of the evidence.



...



I do not ... accept the submissions of Channel Seven and the ABC that the word "suspect" is entirely neutral as to the quality of the suspicion. Instead, it is a word of imprecise meaning capable of conveying to different viewers or listeners different perceptions as to the quality of the suspicion, ranging from slight through reasonable to strong grounds.'

and in Sands v Channel Seven Adelaide Pty Ltd & Anor, in which Gray J (with whom Nyland and Vanstone JJ agreed) said:

'The noun "suspect" is not a word of precise meaning. A statement that someone is suspected of something may, depending on the context, convey a number of different meanings. To the extent that the use of the word "suspect" conveys anything about the grounds upon which suspicion is based, it may suggest either suspicion based on slight or no evidence, suspicion based upon reasonable grounds, or, suspicion based upon reasonable grounds founded in direct evidence of the suspect’s own conduct. In determining the meaning conveyed by the word in a particular case, it is important to distinguish those authorities which address the independent issue of whether a particular meaning is capable of being conveyed.



A number of authorities suggest that a statement that a person is suspected of something may imply reasonable grounds for the suspicion. However, such implication will necessarily depend on the context arising in the particular proceeding and in some cases less speculation may be appropriate. A bare statement that a person is suspected of something may not necessarily convey any information about the basis for, or nature of, the suspicion, beyond the mere fact that the person is suspected of that thing.' (footnotes omitted)

65 It is clear that there was exceptional media interest surrounding Mrs Rayney's murder. The extent of that interest is relevant to three pleaded issues. The first of those issues is the question of whether the meaning of the words used by DSS Lee on 20 September 2007 should be considered in the context of his earlier press statements, or simply viewed in isolation. The second is the extent that that context informs the meaning of the words used. The third issue is the availability of the statutory and common law defences of qualified privilege.

66 The level of media interest following Mrs Rayney's disappearance was intense, no doubt fuelled by the respective occupations and prominence of Mr and Mrs Rayney. For the purposes of the trial in this action, a media bundle containing publications in the print media, online and in the electronic media was tendered. The media bundle contained:

(a) 44 news items published between the time of Mrs Rayney's disappearance and the discovery of her body six days later in Kings Park;

(b) a further approximately 200 news items in relation to Mrs Rayney's murder published between 16 August 2007 and 20 September 2007;

(c) a further 103 news items largely dealing with the information conveyed in DSS Lee's media conference of 20 September 2007 published between 20 September 2007 and 22 September 2007; and

(d) a further approximately 200 news items dealing with aspects of the Rayney investigation published between 23 September 2007 and the end of that year.

67 DSS Lee described the media interest as 'incredibly intense' and said that he had never worked on any enquiry before or since with that level of media interest.[20] He said that the media involvement in the case 'sometimes got in the way of the investigation and when it did, we tried to dampen it down'.[21] DSS Lee said that as early as 10 August 2007, shortly after Mrs Rayney went missing but before her body had been found, he recorded in his diary discussions with a number of media personalities and 'allegations that police were going soft on Lloyd Rayney'.[22] He explained that was a reference to a television journalist, Ms Dixie Marshall, who threatened to report DSS Lee to the CCC for being corrupt for not pursuing Mr Rayney because he was a former DPP prosecutor.[23]

68 Inspector Peter Hatch was involved in Operation Dargan in 2007, when he then held the rank of Inspector, in the role of media manager within the police media unit. He described the press conference on 20 September 2007 as 'the largest and most intense conference I had experienced' with the room filled to capacity with about 35 media representatives, including cameramen.[24]

69 The extent of media interest was confirmed by the representatives of the media who gave evidence in this trial, Mr Sean Cowan, the then principal crime reporter for The West Australian newspaper; Mr David Cooper, a Channel 7 journalist; Mr Grant Taylor, then a Channel 9 news reporter in Perth; and Ms Carolyn Monaghan, then an ABC reporter. Mr Taylor described the Rayney investigation as 'the biggest story at the time'.[25] Ms Monaghan said that 'if there is an eminent person involved it goes up the ranks as being a good story'. She said that she knew from the beginning that there was a high level of media interest from the number of reporters covering the story and the newspaper and TV coverage.[26]

70 On 23 August 2007, the director of news at Channel 7 emailed Mr Neil Poh, a media advisor within the police department, referring to 'intense public interest in the investigation into the murder of Supreme Court Registrar, Corryn Rayney'. The letter referred to 'much rumour, speculation and innuendo in the community regarding this case - and the fact that a murderer remains at large'. It posed a number of questions to the Commissioner of Police. One of the last of those questions was 'is Lloyd Rayney a suspect now?' Mr Cooper, who said he would have briefed Mr Menegola in relation to the letter, and perhaps drafted it, said that question would have arisen in his mind because many murder cases involving married women upon which he had reported resulted in the victim's partner being charged.[27]

71 It is apparent from the evidence referred to above, and from the content of the extensive media publications concerning the Rayney investigation that, by the time DSS Lee held the press conference on 20 September 2007, there was intense media interest in, and much speculation in the community as to, the identity of Mrs Rayney's killer.

72 Any press conference held by police concerning an ongoing investigation requires particular care, a matter reflected in the West Australia Police Media Guide (which is discussed below). The context in which the press conference of 20 September 2007 occurred called for very careful attention to the words being used.

73 DSS Lee said that when he held media conferences in relation to Operation Dargan, he was usually dealing with the same reporters; in particular, he referred to Mr Cowan, Ms Sue Short, Mr Taylor and Mr Cooper.[28] Inspector Hatch also said that, to his knowledge, there was continuity of reporters covering the story of Mrs Rayney's disappearance.[29] Mr Cooper said that it was part of his role as a 'good crime reporter' to follow reports by other media organisations in relation to the story.[30] Ms Monaghan said that she had a practice of keeping up to date with what all the other media outlets were saying about the case.[31] Mr Cooper said that he attended each of the conferences on 16 August, 22 August, 29 August and 20 September 2007. Mr Taylor and Mr Cowan each gave evidence that they attended the conferences on 16 August, 22 August and 20 September 2007, but were not asked about their attendance at the conference on 29 August 2007. Apart from the journalists who gave evidence, the evidence does not reveal who of the large number of journalists present on 20 September 2007 attended any or all of the previous press briefings by DSS Lee. It is clear that each of the four conferences was attended by a number of reporters from a range of media organisations, particularly the mainstream news services of Channel 7, Channel 9, the Australian Broadcasting Corporation and, at least at the conference of 20 September 2007, Channel 10 and The Sunday Times newspaper.

74 Each of the four press conferences received significant media coverage. The media bundle which was tendered in the course of the trial reveals that the statements made by DSS Lee at Kings Park on 16 August 2007 were reported by the Channel 9 news, the Channel 7 news, ABC online, the Subiaco Post newspaper, The West Australian and various eastern states newspapers.[32]

75 DSS Lee's statements to the press on 22 August 2007 and, in particular, his statement that Mr Rayney had fully cooperated with police and was not a suspect in the investigation, were reported by AAP, Networked Knowledge, The West online, The Age newspaper, Channel 7 news, ABC news, The West Australian, the Northern Territory News, The Australian newspaper, News.com.au and various other interstate publications.[33]

76 DSS Lee's statements to the media on 29 August 2007 were reported by Channel 7 news, ABC news, The Australian (under the byline of Ms Alana BuckleyCarr, who was identified as being at the conference of 20 September 2007) and The Mercury newspaper.[34]

77 The media bundle contains in excess of 140 newspaper, television and radio reports of DSS Lee's news conference of 20 September 2007.[35]

78 Those reports included reports by PerthNow, The West Australian, AAP, Channel 7 news, Channel 10 news, ABC news, The Australian, News.com.au and numerous interstate and international news providers.

79 The plaintiff submits that the significance of the previous press conferences can be viewed in a number of ways.

80 The first is that it gives context to the press conference on 20 September 2007, which was held at Curtin House where the principal officers involved in Operation Dargan were based. The earlier media conferences had been held at Kings Park (16 August 2007), outside the Rayney residence (22 August 2007), and at Police Headquarters (29 August 2007). The plaintiff submits that the conference on 20 September 2007 was to be a dramatic and significant press conference, heightening the expectations of those attending.[36]

81 Whilst I consider that the context in which the press conference occurred is significant, I do not accept that the different location of the conference of 20 September 2007 served to provide any emphasis to, or to affect the proper meaning of, the words used by DSS Lee. The location of previous press conferences was of no significance to the meaning of what was said on 20 September 2007. The conference did, however, follow what appeared to be dramatic developments in the investigation, namely the further searches of the Rayney residence and Mr Rayney leaving his home with police and being taken to Curtin House. I agree that those developments were likely to have heightened the expectations of the journalists who attended the press conference, a matter confirmed by the large attendance.

82 The plaintiff also notes that Mr Cooper, at least, attended all four press conferences. There were stories in respect of all four press conferences run by the major media outlets in Perth and the journalists giving evidence confirmed that they monitored news reported by other media organisations. Against that background, the plaintiff identifies various statements made by DSS Lee at the earlier press conferences. They included a statement at the press conference of 22 August 2007 to the effect that Mr Rayney was not a suspect in the investigation, and the statement on 29 August 2007 that 'there is no evidence against Mr Rayney having committed any crime, he is not a suspect in this matter'. The plaintiff also refers to statements made by DSS Lee at the conference on 29 August 2007 expressing confidence that the crime would be solved.

83 The plaintiff relies on the observations of Hunt J in Burrows v Knightley[37] where his Honour said:

Where the matter of which the plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent on the face of the matter complained of itself either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add 'true' innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation. (original emphasis)

84 The evidence makes clear that the press conference of 20 September 2007 was being held in the context of the ongoing Operation Dargan investigation. Inspector Hatch prepared a list of likely questions that might be asked of DSS Lee at the press conference. He did so to enable DSS Lee to prepare for the conference. Some of the questions contained references back to statements that had been made by DSS Lee at the earlier press conferences.[38] Inspector Hatch agreed that he anticipated that journalists who came to the press conference on 20 September 2007 would include journalists who had been at the press conferences on 22 and 29 August 2007.[39] There were in fact questions posed at the 20 September 2007 press conference by journalists referring back to earlier statements by DSS Lee in previous press conferences.

85 Notwithstanding that context, I do not consider that the words spoken by DSS Lee at all four press conferences can be treated as, in effect, a single publication. The press conference of 20 September 2007 was given at a time when there were new developments in the investigation, in particular the further searches of the Rayney residence and Mr Rayney's office and the proposal to charge him in relation to the telecommunications matter. The position had changed, so far as the public position of the police was concerned, from one where they had expressly stated (contrary to the private view of a number of officers) that Mr Rayney was not a suspect, to a position where he was now to be publicly considered a suspect. In those circumstances, the words used by DSS Lee on 20 September 2007 stood alone as a separate publication and should be construed on their own. The words to which meaning is to be attributed are therefore those referred to as the 'alternative utterance' in the statement of claim.

86 From the cases discussed above, the following principles emerge:

• the meaning of the words is to be ascertained by the sense in which fairminded ordinary reasonable members of the general community would understand them;[40]
• persons who hear the words (or read a republication of oral statements) may be acting reasonably even if they engage in a certain amount of loose thinking although they are not persons 'avid for scandal';[41]
• listeners try to strike a balance between the most extreme meaning that the words could have and the most innocent meaning;[42]
• listeners consider the context as well as the words used;[43]
• the bane and antidote must be taken together;[44]
• listeners do not formulate reasons in their mind, but form a general impression from the words used;[45]
• when words used are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw inferences adverse to the subject;[46]
• ordinary readers draw implications more freely than lawyers, especially when they are derogatory;[47]
• the mode and manner of publication is material. The more sensational the publication, the less care in its analysis is likely to be exercised by listeners;[48]
• statements concerning police investigations into a plaintiff commonly give rise to three possible defamatory meanings, namely that the plaintiff is guilty, that there are reasonable grounds to suspect that the plaintiff is guilty, or that there are grounds for investigating whether the plaintiff is guilty.[49] Those three meanings are not exhaustive;[50]
• the word 'suspect' may, depending on its context, convey a number of different meanings;[51]
• a bare statement that says no more than that a person has been arrested and charged does not bear the imputation that the person is guilty of the offence charged.[52]

87 In the course of this trial I have watched the video recording of DSS Lee's 20 September 2007 press conference a number of times. In the course of crossexamination of witnesses, and in the course of the submissions by counsel, different passages from the transcript were reviewed and commented upon. In the course of writing these reasons I have again viewed the video recording to assist me in my consideration of the submissions as to what imputation is to be drawn from the words used by DSS Lee. I am mindful that that process of analysis creates a real danger of departing from the task of assessing the meaning of the words in a way that a reasonable person, receiving the information for the first time, would understand them according to their ordinary and natural meaning.[53] It also tends to lead to the risk of analysis as a lawyer and of overlooking the 'important reminder for judges' that ordinary readers and listeners draw implications much more freely, especially when they are derogatory.[54]

88 At first blush, having regard to the proposition that a bare statement that a person has been arrested and charged does not carry with it an implication of guilt, a statement that a person is a suspect and has not yet been charged, coupled with a statement that the police do not yet have sufficient evidence to charge him, would appear less likely to impute guilt. It is essentially that proposition which underlies the defendant's contention as to the meaning of DSS Lee's words. The task, however, is to ascertain the overall meaning and effect of the words.

89 For reasons which I will explain, I have come to the conclusion that the ordinary person hearing or reading DSS Lee's words would (and I have no doubt that many did) conclude that, reading between the lines, his words conveyed the imputation that Mr Rayney murdered his wife. To explain that conclusion, it is necessary to review the significant statements made in the course of the press conference, both those that tend to implicate Mr Rayney and those which might be classified as antidote.

90 DSS Lee's prepared statement commenced with the following assertion:

LEE: ... today, operation Dargan detectives executed Criminal Investigation Act search warrants at a further two premises, ah, the Rayney home in Monash Avenue in Como and Mr Rayney's business premises at the Francis Burt Chambers in the City. Our ongoing investigations and forensic evidence have led us to believe it is very likely that Mrs Rayney was murdered at her Monash Street home, on Tuesday evening the 7th of August. The purpose of our examination today is to expand our forensic examination of, of this scene.

91 This initial assertion that it was 'very likely' that Mrs Rayney was murdered at her home was reinforced several times later in the conference. When, responding to a question, DSS Lee said:

PRESS: Jack what, what, makes you believe that Corryn Rayney was murdered at the home?



LEE: Ah, as I said our, our forensic evidence, which we - we've been working behind the scenes for a long time as we've indicated. Umm, we've interviewed a lot of people. We've got a lot of forensic evidence and that evidence is starting to come back. Ah, we now believe that, umm, that, that is the most likely place where this offence occurred.

92 It can be noted in passing that, as at 20 September 2007, the basis upon which the police suspected that the offence occurred at the Rayney residence was the presence of Liquidambar fruit pods in Mrs Rayney's hair, a small piece of diosma flower located on a spot of blood in Mrs Rayney's car, and some as yet unanalysed brick dust found on her boots. The words 'we've got a lot of forensic evidence' that 'is starting to come back' somewhat overstated the basis of the belief. Nothing said in the interviews of 'a lot of people' provided any basis for a suspicion as to the location of the offence. Inherent in DSS Lee's response is a suggestion that the police had more to support the suspicion as to location than in fact they had. That suggestion was reinforced when the following answer was given by DSS Lee:

PRESS: Yeah hold on. But you have told us that you've got forensic evidence that suggests that she was in fact murdered at the house, so we've got that detail. Have you got any forensic evidence...



LEE: Yeah, look and that's a broad brush. We, we do believe that, ah, that's the most likely place where she was killed. Umm, we can't say definitively but we believe that's the most likely. Umm, there, there are, ah, many forensic results which have to come back which give us that, that indication. Umm, we cannot exclude at this time that it happened elsewhere. But we believe it, it is most likely that it, it occurred at that house.

93 Again there is an implication that the forensic examination results that were expected would serve to confirm the location of the offence. As at 20 September 2007, the only possible forensic results that might have supported that theory would have been the results from testing and searches at the Rayney residence. That search was still underway when DSS Lee held his press conference, and indeed continued for two more days. When he spoke to the press, DSS Lee knew nothing of anything done by those carrying out the search and had no basis for expressing an expectation that forensic results would support his theory. The operational orders for the search of the Rayney residence show that the object of the search was to find items that might support the conclusion that the offence occurred at those premises, including luminol testing.[55] DSS Lee agreed in crossexamination that he expected that the search would lead to further information coming forward that would confirm that the offence occurred at the Rayney residence, and that that would enable him to charge Mr Rayney.[56] The objective implication that I consider can be drawn from this part of DSS Lee's comments reflects what he acknowledges to have been his subjective state of mind.

94 Not surprisingly, the press seized on the proposition that the murder occurred at the Rayney residence. The following exchange ensued:

PRESS: Can you tell us whereabouts in the house it was that it is likely to have occurred?



LEE: No, I don't wish to disclose the, the, exact area that we, we, think that has occurred at.



PRESS: Are you able to say if it was inside the actual building or to the outside of the building?



LEE: No, I, I don't want to go down that path, it's giving away information that at this stage we would like to keep, umm, confidential.

95 It was the fact that the police had absolutely no evidence that would have enabled them to assess where, in the sense of inside or outside, at the residence any assault had occurred. DSS Lee's answers gave the distinct impression that the police knew 'the exact area' where the offence occurred, thus heightening the suggestion that the offence occurred at the Rayney residence and the strength of the suspicion of Mr Rayney. Whilst in the circumstances the decision to take questions at all is difficult to understand, if the question was asked and answered, simply answering 'no' would not only have been accurate, but would not have implied that the police had more information than they in fact had that might have implicated Mr Rayney.

96 It is apparent that at least some of the journalists present treated DSS Lee's statements that it was 'very likely' or that 'we believe' that the murder occurred at the Rayney residence as establishing that fact. That can be seen from the following exchanges.

PRESS: Do you believe that one of the children was at the house when the ...



LEE: Oh look as far as pinning it down to an actual time frame, that's, that's very difficult. We know that the children were at the house over night, umm, so I suppose the answer to that is yes, but I can't speculate on that.

97 And further:

PRESS: Jack, do you believe the two girls were in the house when their mother was murdered?



LEE: I suppose that, that's, that's the problem with speculation. Once you, you go on from yes we believe that it is most likely she was murdered at that house, we believe it was most likely occurred on that night and from the, the information that we have, we believe the girls were at home for most of that night. So, I suppose the answer is yes but it's as a series of, oh, it's a conclusion. Umm, we don't have evidence to say they, they saw something, if that's where you're goin'.



PRESS: Potentially though, they could be your key witnesses?



LEE: Absolutely.

98 That a journalist construed DSS Lee's statements as suggesting Mr Rayney was guilty is inferred by the following exchange:

PRESS: Do you think he worked with other people to do this, because you said they might come into the investigation at some time?



LEE: Oh, I wouldn't like to speculate on whether this offence occurred, umm, was the result of one or more persons.

99 DSS Lee made no effort in response to that question to disabuse the journalist of the premise to the question, namely that Mr Rayney 'did this'.

100 There were a number of responses to questions by DSS Lee that tended to cast Mr Rayney in a bad light and reinforce the suggestion of guilt. The first assertion made in the context of the prepared statement was the gratuitous assertion that Mr Rayney had denied access to his house for the purpose of the police search. Whether or not that was true, it reinforced the suggestion of guilt. That was further reinforced by the following exchange:

PRESS: Extrapolate on the actual entry to the house this morning. Did he sort of yell out from inside, 'No you can't come in', or did you just have no answer?



LEE: Oh look I wasn't there when the warrant was, umm, executed.



PRESS: What have you heard happened at the time?



LEE: My understanding was we demanded entry, umm, we tried to contact the house, we were aware Mr Rayney was inside the house and he didn't answer the door. Umm after knocking several times, we forced entry.



PRESS: Was that, was that lack of, lack of, umm, cooperation if you like at the time, was that explained by the fact he was in the shower or anything like that later on the track?



LEE: No, no it's not explainable.

101 In fact, as was well known to police, Mr Rayney was on the phone when police were seeking to enter his house. The circumstances surrounding this issue are dealt with in more detail later in these reasons. Whether or not being on the phone may have been a satisfactory explanation, the assertion 'it's not explainable' overstates the position. The gratuitous reference to denial of access was obviously unnecessary and tended to suggest conduct consistent with guilt. So too was the response that asserted that Mr Rayney was not cooperating with police. In relation to cooperation, the following exchange took place:

PRESS: Has he refused to answer questions?



LEE: Umm, the, the interview of Mr Rayney is on-going at this time. Umm, I am not currently aware of the status of that so that may have changed but he has not cooperated with police today. That was why he was arrested at the scene and that was why we forced entry into the house.

102 In fact, Mr Rayney was not arrested at the scene because he had not cooperated with police. The decision to arrest him was made at least some days in advance of the police attending to carry out the search warrant.[57] What was said by DSS Lee was false, a fact that he acknowledged.[58] Its significance is not however its falsity, but the implication of Mr Rayney's conduct being consistent with guilt.

103 A similar implication of guilt can be drawn from DSS Lee's responses about obtaining statements from Mr and Mrs Rayney's children and the potential importance of them as witnesses.

PRESS: You've interviewed the children?



LEE: No, we would like to interview the children. We've, ah, spoken to them early in the investigation. We would like to interview them again.



PRESS: What's stopping you?



LEE: Sorry?



PRESS: Obviously that's very important in terms of Mr Rayney's alibi and things...



LEE: Oh look extremely important. Yes, yes we would like to speak to the children again.



....



PRESS: What is stopping you from interviewing the children?



LEE: Ah, Mr Rayney is.



PRESS: So he has refused to let you talk to them?



LEE: Umm.

104 In his prepared statement, DSS Lee said:

As a result of further investigations this morning, including the interview of Mr Rayney, he is now a suspect in the murder of his wife

105 This statement suggested that some investigation that morning or something said in the interview had resulted in his arrest as a suspect for murder. That was not true. As noted earlier, the evidence clearly demonstrates that the decision to arrest Mr Rayney in relation to the murder was made, at the latest, some days before the search warrant was executed on 20 September 2007. The statement suggested that there was more to the suspicion than the 'forensic evidence' leading to the belief that the offence occurred at the Rayney residence.

106 On two occasions DSS Lee referred to the possibility that Mr Rayney might confess, in which case he would be charged that day. Those occasions were as follows:

PRESS: Are you going to charge him with murder today?



LEE: ... the interview with Mr Rayney is ongoing at this very moment. Umm, subject to the result of that interview, ah, we'll know whether Mr Rayney's been charged in relation to that particular offence

107 And later:

PRESS: Jack can you just clarify again for us, you said earlier that there is a possibility, you're not sure at this stage, but there could be a charge of murder sometime later today.



LEE: No sorry I don't want anyone to be misled in relation to that. We are interviewing Mr Rayney in relation to the murder of his wife. Umm, pending the outcome of that interview, umm, that would be the only time, if Mr Rayney was to make some level of admission, that would be the only time, today, we would prefer that charge. At this time we have no intention and no evidence to suggest that Mr Rayney is in fact guilty of or is in fact, umm, responsible for this offence.

108 And at the conclusion of the conference:

PRESS: Will you be lodging him at the lock up or will you be letting him out of the front door of Curtin House?



LEE: I, I don't know, I don't know. We've got, we have teams that are working in relation to each of the specific areas of, of this investigation and one team is, is, umm, conducting the interview of Mr Rayney. When they've completed that interview, and subject to, umm, any admissions or confessions he may make, they'll determine what if any offences he's going to be charged with. He will be charged with that particular offence, and then they'll determine his bail and he, he will be released on bail. And whether that's done from Curtin House or whether it's done from East Perth I, I don't know.

109 The fact was that the interview had concluded some fifty minutes before DSS Lee gave the press conference[59] and Mr Rayney had declined to answer any questions. It is surprising that DSS Lee was unaware of that fact and that he made comments about the possible outcome of the interview in total ignorance of the state of the interview. The implication that Mr Rayney might be in a position to confess to murder is reinforced when the suggestion is considered with the later response to a question as to how close the police were to solving the crime, namely:

PRESS: So you're closer but you're not close enough yet.



LEE: We, look, we, we've, I've have worked very hard behind the scenes in relation to this and there's been a lot of work has gone on by a very dedicated team. We've excluded a lot of people, we've included some people, ah, we've substantially raised the level of one particular person in relation to this. We now think we know where the offence occurred. Umm, yeah, I'd say we are substantially further than we were. Umm, there's still a long way to go and, umm, we, as I've said many times I think we have the evidence. It's a matter of actually working out where it all fits together.

110 There were questions which, had DSS Lee answered either honestly or in an appropriately equivocal way, would have demonstrated how far the police were from having evidence that might support the laying of a charge of murder. For example:

PRESS: Have they found the digging implement?



LEE: Oh look we, we found a number of digging implements. We don't know yet whether we've got the correct one. Umm, we have so many forensic, umm, samples in relation to this investigation and we are investigating many other offences of course. Ah, we simply don't know if we've got the right one at this stage.

111 DSS Lee could have added that no digging implements were found at the Rayney residence, and the police were aware that a neighbour had, unbeknown to Mr Rayney, borrowed his spade some months before Mrs Rayney went missing, and had not returned it until he rang Mr Rayney during the search on 22 August 2007 and told him that he had the spade.

112 A further example is:

PRESS: Have you forensically linked him to the disposal scene?



LEE: Oh, I don't wish to discuss particular, umm, I don't wish to discuss particular items of evidence or particular forensic results. That, that wouldn't be appropriate.

113 Aside from the finding of a place card bearing Mr Rayney's name some distance from the grave site in Kings Park, a matter that DSS Lee initially considered to be of no particular significance, there were no 'particular items of evidence or forensic results linking Mr Rayney to the disposal site'. The answer given by DSS Lee left open the inference that such evidence might have been in the possession of the police.

114 And further:

PRESS: Have you spoken to neighbours? Did they hear an argument or anything at the house?



LEE: All the neighbours have been interviewed. I, I can't go into specifics of what people have told police and what they've said in their statements but we have interviewed all of the neighbours in the street, yes.

115 In fact, as DSS Lee was undoubtedly aware, no neighbours had reported hearing any argument or seeing anything unusual on the night in question. Someone hearing an argument would have been particularly significant. The lack of any suggestion (including from Sarah Rayney) of an argument was also of significance. The fact that DSS Lee left open the possibility that a neighbour may have reported hearing an argument as a live possibility was consistent with a general approach of avoiding comment on anything that might have been inconsistent with the suspicion of Mr Rayney, but making comments which tended to raise a spectre of guilt.

116 Importantly in the context of the imputation to be drawn from DSS Lee's words, is his use of the words 'only suspect', 'prime suspect' and 'primary person of interest, or the suspect'. Taken in isolation it can be accepted that the expressions 'prime suspect' or 'only suspect' do not necessarily impute guilt. That was a conclusion reached by Kelly J in Sands v State of South Australia,[60] where her Honour rejected the proposition that if there is only one suspect, that logically leads to the conclusion that there are strong grounds to suspect guilt. The Full Court of South Australia expressly agreed with that conclusion.[61] That discussion was in the context of consideration of the particular words used at the press conference in question and the particular imputation pleaded. In my view, the use of those words, including the choice of adjectives, by DSS Lee served strongly to reinforce the implication drawn from the whole of the words said in the press conference that Mr Rayney was guilty of his wife's murder. The word 'prime' was not used to convey that Mr Rayney was one of a number of suspects in respect of whom there was inconclusive proof, as the following exchanges demonstrate.

PRESS: Is Mr Rayney your prime suspect now Jack?



LEE: He's our only suspect at this time. We do have a number of persons of interest. Umm, some persons of interest have been excluded from this investigation, umm, some remain and I have no doubt that some will be injected into the investigation in the future. At this time, he is the primary person of interest or, or the suspect.

117 There was no reference to the possibility that Mr Rayney might, in the future, be excluded from suspicion. The reference to there being no doubt that some persons of interest may be injected in the future can readily be construed as a suggestion that Mr Rayney may not have been acting alone. That was clearly the construction adopted by the journalist who asked the next question:

PRESS: Do you think he worked with other people to do this, because you said they might come into the investigation at some time?



LEE: Oh, I wouldn't like to speculate on whether this offence occurred, umm, was the result of one or more persons.

118 DSS Lee explained his use of the word 'prime' by reference to the process of logic that he was employing to support his suspicion.

PRESS: So why is Lloyd Rayney your prime suspect?



LEE: He is our prime suspect because our, our evidence at this time leads us to believe the offence occurred at that house and he is the, the occupant of that house.

119 There are of course things said by DSS Lee that run counter to an imputation of guilt.

PRESS: Jack can you just clarify again for us, you said earlier that there is a possibility, you're not sure at this stage, but there could be a charge of murder sometime later today.



LEE: No sorry I don't want anyone to be misled in relation to that. We are interviewing Mr Rayney in relation to the murder of his wife. Umm, pending the outcome of that interview, umm, that would be the only time, if Mr Rayney was to make some level of admission, that would be the only time, today, we would prefer that charge. At this time we have no intention and no evidence to suggest that Mr Rayney is in fact guilty of or is in fact, umm, responsible for this offence.

120 I have commented above on the reference to a possible admission. That reference tended to undermine the acknowledgement that there was no evidence to suggest Mr Rayney was guilty, as did the words 'at this time', particularly when considered with the agreement to the proposition that police were 'closer but not close enough yet' and the statement shortly afterwards that 'I think we have the evidence. It's a matter of actually working out where it fits together'.

121 DSS Lee did disavow the proposition that the phone tap charges linked Mr Rayney to the murder. It was not surprising that such a link might be made given that his arrest on that charge (albeit described as 'unrelated') was announced at the conclusion of his prepared statement that dealt mostly with the belief as to the location of the scene of the murder and Mr Rayney's status as a suspect. The exchange went as follows:

PRESS: Apart from the phone taps is there any evidence that links Lloyd Rayney to the murder?



LEE: Ah, look, I am not suggesting that the phone tap links him to the murder. I'm simply saying that as a result of our investigations we've uncovered an illegal, umm, practice and we, we are prosecuting in relation to that.

122 Interspersed in some of the statements set out above are words of qualification which might be thought to require a less sinister imputation to be drawn from the totality of the words used. These include:

• In relation to the location of Mrs Rayney's murder; 'we can't say definitively but we believe that's the most likely' (place where she was killed), and that 'we cannot exclude at this time that it happened elsewhere'.
• In relation to how close the police were to laying a charge of murder; '... there's still a long way to go'.

123 What is apparent from those qualifications is that each was itself qualified. In saying that the police could not say definitively where the offence took place, DSS Lee reiterated that it was 'most likely' that it occurred at the Rayney residence. The statement that they still had a long way to go was preceded by saying 'we are substantially further than we were'.

124 Having undertaken that fairly detailed analysis in the way that an ordinary reasonable and fairminded member of the public would not do, it is necessary for me to stand back and identify my own response to the words complained of and then to ask whether that response reflects the response of the fairminded reasonable recipient of the communication.[62] My own response, having had the benefit of seeing and hearing the words delivered by DSS Lee, is that they bear the guilt imputation. I am satisfied that, objectively viewed, that is the imputation that the ordinary fairminded listener would draw. Although in assessing the imputation to be drawn, I have not brought to bear the evidence of subjective responses to the words spoken by DSS Lee, I take some comfort in the conclusion that I have reached from the fact that many people with whom Mr Rayney came in contact or had dealings after 20 September 2007 appear to have taken the words to convey the guilt imputation.

125 As is apparent, I reject the defendant's primary argument that DSS Lee's words cannot, as a matter of law, give rise to the guilt imputation because that proposition is contrary to Mirror Newspapers v Harrison.[63] The trial judge's summary of the case as pleaded in Mirror Newspapers v Harrison is set out in the judgment of Mason J as follows:

The report was published on the first and second pages of the Daily Mirror newspaper on 14 August 1980.



On the front page, in headlines two inches high, the article says:



'BALDWIN: 4 ARRESTS'



and, in smaller type:



'3 MEN, WOMAN HELD IN RAIDS.'



The headline on the second page is:-



'BALDWIN - 4 ARRESTED'



and, in smaller type:-



'Police raid city homes.'



On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made 'in dawn raids today over the bashing of State Labour MP Peter Baldwin'. Mr Baldwin is said to have been 'viciously bashed by at least two men' and to have suffered 'shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds' necessitating 'almost two weeks in hospital'. The article reminds its readers that Mr Baldwin had earlier made allegations of voterigging and of the infiltration of organized crime into innerCity Labor Party branches, and implies that the attack upon him was in reprisal for those allegations.



The arrests are said to have followed a month of 'intensive investigation by a special squad of detectives' who had 'worked around the clock to fulfil a directive from the Deputy Premier, Mr Ferguson, that the culprits be found'. The article says that a fourth man may be arrested and that all five are expected to appear in Court later that day, to be charged with 'conspiracy and fraud'. The article states that tight security will surround the Court when they so appear.



The two imputations at issue are in the following terms:



'(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital;'



'(ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing'.

126 It can immediately be noticed that nothing was said about the basis of the suspicion about the plaintiff in that case, nor about any conduct of the plaintiff that related to the suspicion. The article simply reported that the plaintiff and three others had been arrested and charged. Otherwise, the article discussed the background to the offence and the investigation that had followed. As Mason J said, the question in the case was whether a 'mere newspaper report of the fact of arrest and charge is capable of bearing an imputation of guilt of the offence charged'. That is not this case.

127 In this case no charge had been laid, but Mr Rayney had been arrested as a suspect for the purpose of interview in relation to Mrs Rayney's murder under the Criminal Investigation Act 2006 (WA) (CI Act) and was to be charged with what DSS Lee described as an unrelated charge under the Surveillance Devices Act. Had DSS Lee confined himself to a bare report of those facts, then the circumstances would have given rise to the approach explained in Mirror Newspapers v Harrison. He chose, however, to venture into a level of detail as to the basis for suspicion and, in my view, conveyed the imputation that the suspicion was wellfounded.

128 There is, I think, a further distinction to be drawn between this case and cases like Mirror Newspapers v Harrison and John Fairfax Publications Pty Ltd v Rivkin. Those cases concern newspaper reports in relation to police investigations and the consequences of reports as to apparent suspicion by the police. They thus concern third party statements as to police suspicion. This case is concerned with a statement, as it were, straight from the horse's mouth. I have set out above the circumstances, in terms of media interest, that preceded the press conference on 20 September 2007 and, in particular, the speculation as to the identity of Mrs Rayney's killer. Against that context, the likelihood of listeners drawing adverse inferences from any loose or ambiguous language was heightened, not because the listeners were 'avid for scandal', but because of speculation rife in the community and, no doubt, among representatives of the media.[64] The media (and, in turn, the public to whom republication was not only inevitable but was intended) were not left to draw inferences from the mere fact of arrest, but were given information directly from the police spokesman as to why there were strong grounds for suspicion of Mr Rayney. It is a small step, and one that I consider ordinary reasonable people hearing the words would have taken, to construe DSS Lee as saying, in effect, 'he is guilty - but we have to wait to garner some more evidence, that we either already have or will have after the search of his home is complete, before charging him'. It follows that I am satisfied that DSS Lee's statements had the legal capacity to bear the guilt imputation.

129 The defendant argued that even if the words were capable of supporting the guilt imputation, they did not in fact give rise to the imputation. Much of the basis for that submission turns on the various passages of the press conference which I have discussed above and it is not necessary to revisit those matters. The defendant also prayed in aid of its argument the passage from Mirror Newspapers v Harrison where Mason J said:[65]

The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

130 That observation was made in explanation of the principle concerning publications that 'do no more than state that a person has been arrested and charged'. It does not mean that an imputation of guilt can never be attributed to a statement by a police officer before a conviction is obtained. That is well recognised in the cases discussed earlier in these reasons which speak of the possible categories of defamatory meaning arising from statements of suspicion.

131 For the reasons I have set out, I am satisfied that the words spoken by DSS Lee on 20 September 2007, in their entirety and taken alone (that is, the alternative utterance), bore the guilt imputation.

132 Because the defendant does not seek to justify the guilt imputation as true, it is necessary to consider whether the publication is protected by qualified privilege under the Defamation Act or at common law.

133 The defendant asserts that the statements made by DSS Lee at each of the four press conferences, including on 20 September 2007, were made on an occasion of qualified privilege for the purposes of the defence under s 30 of the Defamation Act. A defence of qualified privilege in relation to the publication of defamatory matter exists under that section if the defendant proves that the recipient of the publication has an interest or an apparent interest in having information on some subject, the matter is published to the recipient in the course of giving information on that subject, and the conduct of the defendant in publishing the matter is reasonable in the circumstances. The recipient of the information has an apparent interest in having information on some subject if and only if, at the time of the publication, the defendant believes on reasonable grounds that the recipient has that interest (s 30(2)).

134 Section 30(3) of the Defamation Act provides:

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account

(a) the extent to which the matter published is of public interest;



(b) the extent to which the matter published relates to the performance of the public functions or activities of the person;



(c) the seriousness of any defamatory imputation carried by the matter published;



(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts;



(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously;



(f) the nature of the business environment in which the defendant operates;



(g) the sources of the information in the matter published and the integrity of those sources;



(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;



(i) any other steps taken to verify the information in the matter published; and



(j) any other circumstances that the court considers relevant.